The Patna High Court set aside an order taking cognizance in a criminal complaint alleging assault, property theft, and misbehaviour, attributing the dispute to long-standing enmity and prior litigation between the families.
The order dated 29.02.2008 taking cognizance under Sections 341, 323, 448, 379 and 34 IPC is set aside.
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IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.20375 of 2008
Arising Out of PS.Case No. -0 Year- null Thana -null District- NALANDA (BIHARSHARIFF) =========================================================== 1. Arun Paswan, S/o Late Brahmdeo Paswan
All are of resident of village- Mirchaiganj, Police Station- Nalanda, DistrictNalanda
.... .... Petitioners
Versus
.... .... Opposite Parties =========================================================== Appearance : For the Petitioners : Mr. Rabindra Prasad Singh, Advocate For the O.P. No. 2 : Mr. Anil Kumar No. 1, Advocate For the State : Mr. Jharkhandi Upadhyay, APP
=========================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR ORAL JUDGMENT
Date: 18-11-2014
Heard the counsel for the parties.
The petitioners have put up a challenge to the order dated 29.02.2008, passed by the learned Judicial Magistrate, Ist Class, Biharsharif, Nalanda in Complaint Case No. 1425(C) of 2007, whereby cognizance has been taken under Sections 341, 323, 448, 379 and 34 of the Indian Penal Code.
One Priyanka Kumari, daughter of petitioner nos. 1 and 2 was found to be cutting crops standing in the field of
Patna High Court Cr.Misc. No.20375 of 2008 dt.18-11-2014
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opposite party no.2. When this was protested, petitioner no.2 is said to have assaulted opposite party no. 2. An attempt was made on behalf of opposite party no. 2 to have the matter settled, but to no avail. Later accused persons including the petitioners entered the house of opposite party no. 2. Petitioner no. 1 is said to have misbehaved with opposite party no. 2 but she could any how manage to be saved. Petitioner no. 2 is said to have taken away the gold chain from the possession of the complainant. Similar is the allegation against the Priyanka Kumari, daughter of petitioner nos. 1 and 2. Petitioner nos. 1 and 3 are also said to have taken away the valuable articles, the details of which have been stated in the complaint petition. Pursuant to such a complaint, an enquiry commenced whereupon cognizance has been taken under various sections of the Indian Penal Code about which reference has been made in the 1st paragraph.
Learned counsel for the petitioners submits that from the allegations, it would appear that it is nothing but a fall out of an earlier spate of litigation between the parties. The petitioners and opposite party no. 2 are co-villagers and have been on litigating terms from before. Earlier cases filed by petitioner nos. 1 and 2 against the husband of opposite party no. 2 have been brought on record to demonstrate the factum of old enmity and dispute between the parties. Section 107 Cr.P.C. proceeding was also initiated as against the parties because of their propensity to create disturbance for each other.
Patna High Court Cr.Misc. No.20375 of 2008 dt.18-11-2014
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Considering the fact that there has been enmity between the family of opposite party no. 2 and the petitioners, it would not be difficult for this Court to lift the veil of the prosecution version only to find out that it is fall out of a proceeding under Section 107 Cr.P.C. and earlier litigation. At the stage of taking cognizance, what has to be seen is whether averments made in the complaint petition make out a case or not. However, such a requirement of law can not be misused by taking it as a subterfuge for launching malicious and false accusation. This Court is not expressing any opinion regarding the falsity or truthfulness of the allegations levelled in the complaint petition. The Court is only recording the history of litigation between the parties and that also for trivial dispute.
Keeping in view the above mentioned reason, the order taking cognizance dated 29.02.2008 which has been assailed in this petition is set aside.
The application is allowed.
Patna High Court, Patna Dated 18th November, 2014 N.A.F.R./P.K.
(Ashutosh Kumar, J)
U T
2 issues framed by the court
Whether the order taking cognizance invoking criminal prosecution under various sections of the Indian Penal Code should be set aside given the history of enmity and prior litigation between the parti
Whether the allegations in the complaint constitute a fall-out of earlier Section 107 Cr.P.C. proceedings and civil litigation rather than independent criminal acts.
6 provisions across 6 enactments
Arun Paswan
Leela Devi
Madhusudan Paswan
State of Bihar
Sabitri Devi
Ashutosh Kumar
As recorded by the court registry
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